Peremptory challenge usually refers to a right in jury selection for the defense and prosecution to reject a certain number of potential jurors who appear to have an unfavorable bias without having to give any reason. Other potential jurors may be challenged for cause: i.e., by giving a reason why they might be unable to reach a fair verdict.
The idea behind peremptory challenges is that if both parties have contributed in the configuration of the jury, they will find its verdict more acceptable. The existence of peremptory challenges is an important safeguard in the judicial process as it allows both the defendant and the prosecution to get rid of potentially biased jurors. Their use allows attorneys to use their training and experience to dismiss jurors who might say the correct thing, but might otherwise harbor prejudices that could infringe the rights of the defendant to a fair trial.
The use of peremptory challenges is controversial as some feel it has been used to undermine the balanced representation on a jury which would occur using random selection. Despite this, it still remains in use in several jurisdictions and in some cases leads to extensive and expensive jury research, aimed at producing a favorable jury.
Contents |
All Australian states allow for peremptory challenges in jury selection; however, the number of challenges granted to the counsels can vary between states.
Peremptory challenges were first used in England not many years after the assizes of Clarendon of 1166 allowed jury trials. When the concept was first introduced into the jury system, the maximum number of peremptory challenges allowed was thirty-five. As time went on, this number reduced, and by the year 1509 the maximum number of peremptory challenges was twenty. By 1977, the number of peremptory challenges granted to each side was reduced from seven to three. The right of peremptory challenge was abolished altogether by the Criminal Justice Act 1988,[1] which saw it as an erosion of the principle of random selection, and felt that its removal would “increase the fairness of the jury system”.
Peremptory challenges (referred to as "challenge without cause shown") are permitted in Ireland, with each side being allowed seven such challenges[2].
Each party is entitled to six peremptory challenges in New Zealand, and where there are two or more accused the prosecution is provided with a maximum of twelve.
Unlike the rest of the United Kingdom, peremptory challenge survived in Northern Ireland into the twenty-first century. The Juries (Northern Ireland) Order 1996[3] entitled each party to a maximum of six peremptory challenges in civil cases. In criminal cases, each defendant was entitled to a maximum of twelve peremptory challenges; however, the prosecution could only allowed to challenge for cause. Northern Ireland was brought into line with England & Wales, and Scotland when peremptory challenge was finally abolished in 2007 (Justice and Security (Northern Ireland) Act 2007, s.13)
All jurisdictions in the United States have some form of peremptory challenges. In the United States, the use of peremptory challenges by criminal prosecutors to remove persons from a cognizable group (i.e., of one race, ethnicity, or gender) based on that group characteristic has been ruled to be unconstitutional in Batson v. Kentucky, 476 U.S. 79 (1986). "Batson challenge" is a term now used to refer to the act of arguing for the invalidity of a trial on the basis that peremptory challenges during jury selection resulted in the exclusion of a cognizable group.
Batson's authority has also recently been reinforced in a pair of 2005 decisions, Miller-El v. Dretke, 545 U.S. 231 (2005), and Johnson v. California, 545 U.S. 162 (2005). Furthermore, in 2009 the United States Supreme Court found in a unanimous opinion in Rivera v. Illinois that "there is no freestanding constitutional right to peremptory challenges," even when a court was mistaken in applying Batson.
Another form of the peremptory challenge (or peremptory disqualification), available in some jurisdictions, is the right to remove a judge assigned to hear the case without showing that the judge is actually biased or had a conflict of interest. While actual determination of a judge's bias is not required to employ the peremptory challenge, the moving party must still allege bias under oath. In jurisdictions that have this form of peremptory challenge, it generally may only be used once per party per case. (see, Cal. Civ. Proc. Code §170.6)
|
||||||||||||||